N.M.Kasliwal, J. - (1.) Brief facts leading to this appeal are that the respondents Rameshwar and Radhey Shyam along with their father Kalyan Bux (since deceased) filed a suit for pre-emption against Ram Sukh and Abdul Shakoor (since deceased) (His legal representatives have been brought on record). According to the allegations as set up in the plaint Ram Kumar Suraj Bux purchased a shop in a court sale in Samvat year 1976. Mangi Lal father of Kalyan Bux (one of the plaintiffs now deceased) was a partner in firm Ram Kumar Suraj Bux. Mangi Lal died in Samvat year 1992 and the partnership dissolved. On dissolution of the partnership, the shop which was purchased in a court sale by Ram Kumar Suraj Bux came to the share of plaintiff Kalyan Bux. Thereafter the plaintiffs had been using the shop as its owner and had been in its possession. On the west of this shop is another shop, the roof of which belonged to Ram Sukh defendant (since deceased) and to the west of this shop there is a common stair-case which leads to the roof of both the shops. On 2nd January, 1957, Ram Sukh sold the roof to Abdul Shakoor for a sum of Rs. 1,200/- by a registered sale-deed. Abdul Shakoor died and his widow Mst. Rehmat sold this roof to Abdul Gani for a sum of Rs. 1,500/- by a registered sale-deed dated 30th Dec., 1957 who in turn sold it to Pyare Mohan present appellant on 30th December, 1959 for Rs. 1,999/-. On 8th May, 1959, the plaintiff filed an application for amendment of the plaint on the ground that they had no knowledge about the sale of the roof to Abdul Gani, and they prayed that Abdul Gani be also added as a defendant. On further transfer by Abdul Gani to the appellant, the plaintiffs again amended the plaint and impleaded the appellant as a party. The plaintiffs claimed the right of preemption on the principle of Shafi-a-khalit i.e. a common right in immunities and appendages. The defendant contested this suit inter alia on the ground that the plaintiffs were not the owners of the neighbouring shop. The plaintiffs had no easementary right over the roof, the suit was barred by limitation. The learned trial Court decreed the suit and gave a direction that the plaintiffs shall pay Rs. 1,500/-to Abdul Gani defendant and the plaintiffs should file necessary stamps for the execution of the sale-deed in their favour. The defendants Abdul Gani and Pyare Mohan filed an appeal and the plaintiffs filed a cross-objection. The learned District Judge dismissed the appeal filed by the defendants and accepted the cross-objections and gave the following direction: "The result is that the appeal is dismissed with costs. The cross- objection is accepted to the following extent: (1) the plaintiffs are entitled to possession by pre-emption on payment of Rs 1,200/- to defendant No. 10 Pyare Mohan, the last vendee. (2) There is no necessity for the execution of any sale-deed by the defendants in the plaintiffs' favour. The stamps, if deposited by the plaintiffs, shall be returned to them. (3) A sum of Rs. 75/- given by the plaintiffs to the guardian of minor defendants No. 3 to 5 under the orders of the court shall be the costs in the suit." Hence this appeal by the defendant Pyare Mohan.
(2.) Learned counsel for the appellant has contended that both the lower courts have committed an error of law in holding that the adjacent shop on the basis of which the pre-emption is claimed by the plaintiffs was given to Kalyan Bux son of Mangi Lal by Ram Kumar Suraj Bux in lieu of the share of profits of Mangi Lal in the firm Ram Kumar SuraJ Bux. There is no documentary evidence to prove that the shop was given to Kalyan Bux. No entry in the account-books of Ram Kumar Suraj Bux has been produced on record to establish the above fact of transfer in favour of Mangi Lal or Kalyan Bux. Learned counsel drew my attention to the statement of Suraj Bux P. W. 2, Nathu Lal P. W. 3 and Banshidhar P. W. 4 to the effect that there was no entry in the account books of Ram Kumar Suraj Bux. It is further contended that the lower Courts have acted illegally in holding the plaintiffs' claim based on Shafi-a-Khalit as proved. The plaintiffs have utterly failed to prove that they ever used the stairs for approaching the disputed roof in order to reach their own roof as of right for more than 20 years. It is further argued that the suit filed by the plaintiffs was barred by limitation. The disputed roof was sold by the widow of Abdul Shakoor to Abdul Gani vide its sale-deed dated 19th November, 1957 which was registered on 30th Dec., 1957. The original suit was no doubt filed on 2nd Jan., 1958 but Abdul Gani was not made a party. The plaintiffs filed an amendment application on 8th May, 1959, praying for impleading Abdul Gani (which?) will be deemed to have been filed on the date when he was made a party, which admittedly being after 8th May, 1959, was barred by limitation having been filed more than a year after the sale in favour of Abdul Gani. It was also argued that even if it may be admitted for argument's sake that the shop was given to Kalyan Bux he alone could have filed the suit and Radhey Shyam and Rameshwar being strangers had no right of pre-emption and as the strangers have been joined as co-plaintiffs the suit for pre-emption must fail. It is also submitted that Kalyan Bux died on 13th August, 1961 and the right of preemption being a personal right came to an end after his death, as Kalyan Bux died before the passing of the decree by the trial Court, Rameshwar and Radhey Shyam had no right to continue the suit.
(3.) Learned counsel for the appellant has placed reliance on Ramprasad Dagaduram v. Vijaykumar Motilal AIR 1967 SC 278 in which their Lordships held as under: "The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like Section 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of Section 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk v. Ramlal Koondoo (1881) ILR 6 Cal 815. The rigour of this law has been mitigated by the proviso to Section 21 (1) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to inelude a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately the proviso to Section 21 (1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than Nov. 4, 1958." On the basis of the above ruling it is submitted that the suit for pre-emption as regards the sale made in favour of Abdul Gani on 30th December, 1957, will be deemed to have been filed after 8th May, 1959 when Abdul Gani was impleaded as defendant and the suit obviously being filed more than a year after the sale was bareed by limitation. I am not convinced with this argument of the learned counsel for the appellant. The plaintiffs had filed the suit on 2nd Jan., 1958 to pre-empt the sale dated 2nd Jan. 1957 made by Ram Sukh in favour of Abdul Shakoor. Pre-emtption is a right of substitution and not of re-purchase. Thus the right of pre-emptor cannot be defeated by subsequently transferring the property in favour of another person. The fact of sale in favour of Abdul Gani came to the knowledge of the plaintiffs on the filing of the written statement by the widow of Abdul Shakoor on 17th December, 1958. Thereafter Abdul Gani was impleaded as a party but the plaintiffs claimed their right of pre-emption against the first sale made by Ramsukh in favour of Abdul Shakoor on 2nd Jan. 1957. In Kamta Prasad v. Mohan Bhagat, (1910) ILR 32 All 45, it has been laid down that: "The right of pre-emption being a right of substitution rather than a right of re-purchase, the vendee of property which is subject to a right of pre-emption cannot defeat the pre-emptive right by subsequently mortgaging the property and thus force the pre-emptor to take the property subject to mortgage so created." The learned first appellate Court has also placed reliance on the following observations of Abdul Rahman Khan v. Muhammad Ayyub Khan AIR 1924 All 806 in this regard: "In a case arising under a wajib-ul-arz Kamta Prasad v. Mohan Bhagat (1910) 32 All 45 it was held that a subsequent transfer by a vendee was subject to the pre-emptor's right of pre-emption. In the case of Khettar Chandra Basu v. Nalinkali Debi (1913), 11 All LJ 527, which was a case under a custom governed by the Muhammadan Law, it was pointed out that the second sale must be taken to have been made subject to the right of pre-emption, and the plaintiff was only bound to pre-empt the first sale, making of course the subsequent vendee a party to suit so as to bind him by the proceedings. No authority to tha contrary has been cited before us. We are accordingly of opinion that tha plaintiff's right to pre-empt the property was complete after the demands had been duly made by him and that it was not at all incumbent on him to make fresh demands when Abdul Aziz transferred the property to Abdul Karim. Tha sale to Abdul Karim must be deemed to have been effected subject to any right of preemption in force by the plaintiff." In this view of the matter the contention of the learned counsel for the appellant that the suit is barred by limitation has no force. Learned counsel for the respondent also placed reliance on Razawand Singh v. Dukchhor AIR 1914 Oudh 216, Fazal Hussain v. Malik Jinda AIR 1914 Lah 402 and Thakurji Maharaj v, Sujan Singh AIR 1939 All 158. It has been held that in a pre-emption suit, a transferee from original purchaser added as a defendant after one year's limitation in a suit against purchaser, the case would be governed by either Article 120 or Article 144 but does not fall under Art. 10 of the Limitation Act,;